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Prescriptive Easement Arises From Road Use

A Dickenson County Circuit Court grants plaintiffs a prescriptive easement on Tarzan Road, 15 feet in width, for commercial and residential purposes, based on plaintiffs’ evidence about their use of the road for ingress and egress.

The court also enters a permanent injunction preventing the parties, or anyone acting on their behalf, from altering or interfering with plaintiff’s and defendant’s use of Tarzan Road, including altering its width or depth, or impeding ingress and egress by use of any device such as a gate, fence, spikes or signage. The court orders that the land immediately parallel to the main highway remain as it currently is with regard to width and depth, and that the parties, or anyone acting on their behalf may not alter or interfere with the use of this area for entering and exiting Tarzan Road.

Tarzan Road is a gravel road located east of Route 670, also known as Aily Road in Dickenson County. The road is located on land owned by defendants. Plaintiffs allege they have acquired a right to use this road situated on part of plaintiff’s land via a prescriptive easement.

Ownership of the land in question was not in dispute. The only relevant facts in dispute were whether defendants granted plaintiffs permission to use Tarzan Road and whether the use was under a claim of right. Defendants argued that defendants gave plaintiffs permission to use Tarzan Road. However, the evidence establishes that plaintiff’s use of the road was without defendant’s permission because defendant testified as such during the hearing held on Sept. 4, 2015.

In addition to proof of adverse use, plaintiffs offered proof that the use of Tarzan Road was open, continuous, exclusive and uninterrupted for the statutory period. For example, Teddy Owens maintained the road by cutting weeds, and all of the plaintiffs used the road for ingress and egress to their homes on a continuous basis since they have lived on Tarzan Road. This use was open to the public so that anyone could view such use. Defendants’ evidence did not sufficiently rebut the presumption of a prescriptive easement.

Plaintiffs have established an easement by prescription for the use of Tarzan Road. Defendant’s proposed evidence of an alternate road for possible use by plaintiffs is of no consequence, as plaintiffs did not allege an easement by necessity. In addition, defendant’s cross-bill is dismissed and plaintiff’s motion in limine is denied. Plaintiff’s request for attorney’s fees is denied.

Owens v. Calo (Vanover) No. CL 14-165, Sept. 15, 2015; Dickenson County Cir.Ct.; Gerald Gray, Jewell Morgan for the parties. VLW 015-8-110, 4 pp.

VLW 015-8-110

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